Thursday, March 17, 2016

Was there even such thing as an “original meaning” of the constitution?

In at least two of my political science classes back at
Hopkins, I heard professors assert as fact the idea that “there was no original
interpretation!” of the constitution. The logic behind this viewpoint goes
something like this:

“The constitution is at times ambiguous
or vague, and even many of the framers disagreed about what it should mean. One
famous example is Thomas Jefferson and Alexander Hamilton disagreeing about the
National Bank. If even they could not agree on what they meant by it, how can we
possibly figure it out today?”

First, we need to distinguish between ambiguity and
vagueness. Ambiguity is when the same word can have multiple meanings that
aren’t necessarily related. For example, “the right to bear arms” could
technically mean either the right to carry weapons or the right to the upper
appendages of animals from the
Ursidae family. As that exaggerated example illustrates,
intra-constitutional context can almost always determine which meaning was
intended in cases of ambiguity.

Vagueness is different. Vagueness is when the general
concept of something is understood, but the precise boundaries of that concept
in practice remain uncertain. For example, prohibitions against “unreasonable
search and seizure” carry a general connotation, but don’t specify what counts
as that. In the case of vagueness, intra-constitutional context often does not
suffice, so it’s okay to turn to extra-constitutional sources from the framing
era or earlier to help resolve the matter.

However, this is okay only
insofar as such sources are useful towards better informing our best guess as to what the meaning was at
the time of ratification. This is important because it’s very different from
the way left-wing justices handle vagueness today: proposing entirely new interpretations
that lie far beyond the range of debate the framers ever conceived.

To visualize this, suppose all federal power could be
quantified on a scale from 1-10 (one being almost no power, and ten being
absolute power). Further suppose that clause X of the constitution was kind of
vague: some Antifederalists felt it granted as few as two units of power, and
some Federalists felt it granted as much as five units of power. It would be a
reasonable argument, even an originalist argument, to propose a law that
exercised four units of power, and then cite quotes from the Federalist framers
as evidence this law was originally comprehended (at least by some) to fall
within clause X.

This is not what “living document” theorists do. Instead,
they propose a law that wields eight units of power, and claim it is
constitutional under an entirely new, far more expansive interpretation of the
clause. The recognition that there is no singular, unanimous original
interpretation to harken back to is a fair point, insofar as it relates to your advocacy for one original
interpretationover another. But it does not follow from that observation
that we should scrap the entire premise of understanding the words as they were
originally understood. A proposed power needn’t have been unanimously favored by every
framer – but it does need to be plausibly
favored by some of the framers.

Put another way, the central premise of originalism is not
that nothing in the constitution is up for interpretation, or that the answers
are always clear. We do not eschew, deemphasize, or deny the necessary and
complex work of deciphering the constitution’s meaning. What we’re about is
clarifying which meaning which we ought to attempt to decipher in the first
place. Specifically, we think the meaning that matters is the one which the
people most likely understood when they consented to subject themselves to a
government at the ratifying conventions. Alternative meanings which might
be plausibly read into the constitution’s text by today’s most creative legal
minds may be an interesting academic exercise, but without evidence that anyone
officially consented to such an understanding of federal power, they can
carry no moral or legal authority.

With that said, most reasonable originalists concede that
there are certain passages of the constitution for which no specific meaning
can be deciphered with a high degree of certainty. Originalists sometimes
differ on how to handle these situations. My personal opinion on the matter is derived
from famed originalist Randy Barnett’s “presumption of liberty.”

In the event that no guess as to the originally understood
meaning is objectively more likely than another, consent theory mandates that
the court must err on the side of nonconsent: that is, the side of unconstitutionality. The entire purpose
of a constitution is to legitimize a government’s actions by attaining (or at least, attempting to claim)
the consent of the governed. If there remains great doubt as to what it was
that the people consented to in a particular case, it cannot be clearly known
that the people freely subjected themselves to the exercise of power in
question.

This “presumption of liberty” need not come into play too
often, however, as the constitution is usually much clearer than living
document theorists pretend. Those who wish to wield power are biased arbiters:
they have a natural incentive to read clauses as broadly as possible. Feigning
confusion at seemingly straightforward passages enables the judiciary to work
around inconvenient limits on federal power, thereby legitimizing
interpretations that a neutral outsider would never reach upon first reading.
Creating “gun free school zones” as an exercise of the commerce clause is a
prime example of this. Very often, the most immediately obvious and intuitive
interpretation of the constitution is the correct one.